TERMS OF USE OF #NotMe

Update: January 20, 2023

The purpose of these Terms of Use (hereinafter the “Terms”) is to govern the terms under which NotMe Solutions Inc. (for US Customers) and NotMe SAS (for EU Customers) provide the User with the #NotMe Application as part of the service offered to their customers.

These Terms of Use include general provisions applicable without distinction to both US Customers and EU Customers. By way of exception, when expressly mentioned, the provisions may be only applicable to US Customers or EU Customers.

ARTICLE 1. DEFINITIONS

1.1 In these Terms, words or expressions beginning with a capital letter shall have the meanings set out below.

These definitions may be used both in singular and plural form.

  • “Application” means the whistleblowing application developed by NotMe, allowing a User to promptly report the alleged improper and/or toxic behavior (harassment, discrimination, bullying, etc.) of which he/she has been a victim or witness either within his/her Organization, or outside his/her Organization in the event that the person responsible for such behavior is an employee, representative or agent of the said Organization;
  • “EU Customer” means an Organization located in the EU;
  • NotMe” means either NotMe Solutions Inc. or NotMe SAS;
  • “Organization” means (i) any company employer, school, university, music and entertainment presenter, state/federal agency, etc. and/or (ii) any employee, representative or agent authorized to act on behalf of the latter, having subscribed to the services provided by NotMe;
  • “Inappropriate Acts” means any improper fact, act or word, including those likely to represent physical assault or otherwise, including harassment or discrimination regardless of medium and nature (racism, sexual orientation, gender, religion or otherwise);
  • “US Customer” means either (i) an Organization located in the US, or (ii) an individual located in the US and having subscribed to the services provided by NotMe;
  • “User” means any adult individuals, current or former employees, or current or former external and occasional collaborators who are authorized to connect by remote access to the Application on his/her own behalf or on behalf of his/her employer.

1.2 The headings used in the Terms of Use are for convenience only and have no legal or contractual effect for purposes of interpreting the meaning of the related provision.

ARTICLE 2. PARTIES AND FORMATION OF THE CONTRACT

2.1 In the US, the publisher of the Application is NotMe Solutions Inc., 1415 N. Cahuenga Boulevard, Los Angeles, CA 90028.

2.2 In the EU, the publisher of the Application is NotMe SAS, whose registered office is 18 rue Boissière, 75116 Paris, France.

2.3 By registering for the Application and/or by creating a user account, the User declares to be of legal age and having the full legal capacity enabling her/him to commit to the Terms of Use. To report an Account created by and/or for a minor, you can leave a message to the following address: [email protected].

2.4 By accepting the Terms of Use, by ticking a box when registering for the Application, the User becomes aware and expressly accepts, in full and unconditionally, the Terms of Use, whether applicable.

2.5 The User acknowledges that he/she is bound by a contract to NotMe:

  • For US Customers, the contract is concluded with NotMe Solutions Inc.;
  • For EU Customers, the contract is concluded with NotMe SAS.

NotMe and the User are together referred to in these Terms of Use as “the Parties”.

2.6 Any account terminated by NotMe for any type of abuse, including for a violation of the applicable law and/or of the Terms of Use and/or of the applicable Privacy Policy, may not be reactivated without the express consent of NotMe. In case of cancellation by the User or lapse of the account, it may be reactivated through the account interface on the Application.

ARTICLE 3. PURPOSE OF THE APPLICATION

3.1 The Application is a solution that allows Users to promptly alert Organizations of Inappropriate Acts remotely, 24 hours a day. #NotMe is a whistleblowing software/solution.

The Application’s server may be subject to maintenance operations of which the User shall, if so, be informed by NotMe.

3.2 The service provided by NotMe does not include the provision of Internet access or the provision of an electronic communication service to the public.

3.3 The equipment (computer, software, means of communication, etc.) allowing access to the Application shall be the exclusive responsibility of the User or the Organization, as well as the communication costs incurred by their use.

3.4 In order to use the Application, the User must have at least:

  • an Android or IOS phone (minimum version 9.0) or a PC
  • an email address
  • a phone line
  • an Internet connection

3.5 The Application allows the reporting of Inappropriate Acts, in accordance with the applicable whistleblowing regulations under the applicable law (see Article 14).

3.6 For details regarding the categories of improper behavior processed by the Application, the User may refer to the whistleblowing policy implemented internally by the Organization.

3.7 The Application is an option offered to the User by the Organization among other options of which the User is informed by the Organization. The User’s use of the Application is strictly voluntary, with the latter being free to choose other means to report.

ARTICLE 4. USER ACCOUNT

4.1 The User creates a user account, in order to be able to access the services of the Application.

4.2 When registering for the Application, the User undertakes not to impersonate a third party, or to falsify or conceal his/her identity, age or create any false identity.

4.3 Each User is free to terminate his/her registration as provided in Article 11.2.

4.4 Any Report filed and/or updated by a User is brought in good faith. The information provided shall be true, accurate and complete to the best of the User’s knowledge.

4.5 In accordance with Article 11.1, in the event of either any false or incomplete information given by the User to NotMe, or of fraud or attempted fraud, or of a breach of the applicable law and/or of the Terms of Use and/or the applicable Privacy Policy, NotMe reserves the right to suspend all or part of access to the Application to the User at fault, immediately, without prior notice and without reimbursement of compensation to the Organization.

4.6 In the event of a any suspected or actual unauthorized use of the User’s account and/or information, or in case of any other security breach, the User shall immediately notify NotMe at the following address: [email protected].

Any User may also contact NotMe if he/she believes that his/her rights or the rights of a third party are being violated in any way and by any means through the Application or any other service provided by NotMe at the following address: [email protected].

ARTICLE 5. INFORMATION TRANSMITTED IN CONNECTION WITH THE USE OF THE APPLICATION

5.1 The information provided by Users in connection with the use of the Application must remain factual and have a direct connection with the Inappropriate Acts that are the subject of the report.

Except in the circumstances referred to in Article 5.2, NotMe is allowed to use, exploit and/or disclose this information to the Organization without any obligation of confidentiality or anonymity.

5.2 In the event that the User decides to make an anonymous report, he/she is informed that his/her report must be sufficiently detailed in order to be able to be processed by the Organization.

In this case, the anonymity of the User is strictly maintained whether the information is used and/or exploited by NotMe and/or disclosed to the Organization. The anonymity is also strictly maintained during the discussions through the chat between NotMe, the User and/or the Organization.

5.3 The User warrants that no data provided in connection with the Application is deliberately false and that no information is disclosed in violation of the applicable law.

5.4 The use in good faith of the Application does not in any way expose the User to disciplinary sanctions, even if the investigation establishes that the facts reported in the alert were incorrect or that there is no follow-up to the investigation.

5.5 However, any misuse of the Application by the User may result in any legal or disciplinary sanctions or proceedings, which will be decided by the Organization, where appropriate.

5.6 For EU Customers, the User must ensure that:

  • he/she only transmits relevant and necessary information for the Organization’s processing of the Inappropriate Act(s), in order to comply, whether applicable, with the principle of data minimization imposed by the Regulation of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter referred to as “GDPR”);
  • he/she must be particularly vigilant with regard to the transmission, via the Application, of so-called “sensitive” data, as defined in Article 9.1 of the GDPR, in particular data revealing the origin, political opinions, religion or state of health of a person, and to communicate such data only in the event that this is essential for the establishment, exercise or defense of a right in court.

5.7 NotMe may establish general practices and limits concerning either the use of its services, including for example the maximum number of days a content may remain uploaded, the maximum amount of content that may be sent from or received by an Organization’s account, the maximum size of any content, or the design of any content, when and how the content appears on the Application, etc.

ARTICLE 6. PROHIBITIONS

6.1 In the context of the use of the Application, the User is prohibited from:

  • Intentionally disclosing misleading or incorrect data;
  • Using the Application to intentionally harm others;
  • Reporting on issues or share information or documents (for example, for commercial purposes) that are outside of the authorized scope, and in general, using the Application in an unrelated manner to its purpose;
  • Registering more than one user account;
  • Implementing maneuvers aimed at causing disturbances in the operation of the Application;
  • Attempting to intervene on the Application to change its properties or to access confidential data stored on the Application;
  • In general, violate any applicable law or use the Application in a manner that causes a breach of the Terms of Use and/or of the applicable Privacy Policy.

6.2 NotMe may examine and/or control the content posted by Users at any time and may refuse and/or remove any content that constitutes a breach of these provisions or, in general, a breach of any applicable law and/or of the Terms of Use and/or of the applicable Privacy Policy.

ARTICLE 7. PROCESSING OF THE REPORT

7.1 When an Organization subscribes to #NotMe, the reports that the User sends to NotMe via the Application are processed in accordance with a procedure determined by the Organization.

The User may contact the Organization in the event of a question relating to the processing of a report.

ARTICLE 8. PERSONAL DATA

8.1 For EU Customers, please refer to our EU Privacy Policy. It is accessible by clicking on the following link: https://not-me.com/privacy-policy/.

8.2 For US Customers, please refer to our US Privacy Policy. It is accessible by clicking on the following link: https://not-me.com/privacy-policy/.

ARTICLE 9. INTELLECTUAL PROPERTY AND IMAGE RIGHTS

9.1 The trademarks, logos, graphics, photographs, animations, videos, and texts proposed by NotMe, through the Application, are the exclusive intellectual property of NotMe and may not be reproduced, used or represented without the express authorization of NotMe, under penalty of legal action.

9.2 The Terms of Use shall not be construed as assigning or transferring any intellectual property rights of NotMe to Users or to any third party.

9.3 The User undertakes not to do anything that may infringe the intellectual property rights of NotMe.

9.4 NotMe grants the User a non-exclusive, non-transferable right to access and use the Application.

9.5 The Application is protected by intellectual property rights, including copyright, patent law, trademark law, software protection law and all other applicable rights.

9.6 NotMe and each User undertake to respect the image right of the persons covered by the alert and not to publish or disseminate, in any form whatsoever, any image arising from the use of the Application.

9.7 The User shall refrain from carrying out any provisional or permanent reproduction of all or part of the Application, by any means whatsoever.

In addition, it is prohibited to disseminate, distribute, make available directly or indirectly all or part of the Application for the benefit of a third party or the public, free of charge or for consideration, as well as any translation, adaptation, arrangement or modification of the Application, particularly with a view to creating a similar service. Similarly, the extraction or reuse of the databases used by the Application is prohibited.

9.8 NotMe reserves the right to close the account of any User who violates these provisions, according to Article 11.1.

9.9 For US Customers, these provisions are in compliance with the Digital Millennium Copyright Act (“DMCA”) as detailed in Annex 1.

ARTICLE 10. LIABILITY AND WARRANTY

10.1 NotMe shall perform this Contract in the context of an obligation of means.

The User acknowledges that the characteristics and limitations of the Internet do not guarantee the security, availability and integrity of data transmissions during their transit over the Internet.

10.2 It is specified that NotMe cannot be held liable for:

  • any damage related to an interruption or malfunction of the Internet network. It is the User’s responsibility to take all appropriate measures to protect his/her own data and/or software stored on his/her computer hardware against any damage;
  • actions or inaction by third parties;
  • the suspension or permanent closure of a User account resulting from a breach of the Terms of Use;
  • any delay or non-performance resulting from the occurrence of a case of “force majeure” as defined by the applicable law (see Article 14).

10.3 Regarding EU Customers, the liability of NotMe shall be (i) limited to the amount of coverage set forth in the insurance contract for its civil liability, i.e. an amount of €300,000 per claim and per insurance year, and (ii) taken into account in accordance with the said insurance contract.

10.4 The disclosure by the User of unauthorized content within the framework of the whistleblowing system may incur liability. The User shall hold NotMe harmless against any administrative, criminal or civil proceedings, and any extra-judicial disputes based on such content exchanges initiated by the User, even partially.

10.5 The fact that NotMe does not invoke a breach by the User of any of the provisions of these Terms of Use shall not be construed as a waiver by it of any such breach.

10.6 The provisions of Articles 10.1 to 10.5 shall apply to both US Customers and EU Customers.

In addition to the provisions of Articles 10.1 to 10.5, US Customers are subject to specific liability and warranty provisions as detailed in Annex 2.

ARTICLE 11. TERMINATION

11.1 NotMe may permanently or temporarily terminate or suspend a User’s access to the Application without notice in case of a breach of any provision of the applicable law, and/or of the Terms of Use, and/or the applicable Privacy Policy.

NotMe may permanently delete the User’s account after sending the User an electronic message informing the User of his/her breach(es). This termination shall take place without prejudice to any damages that may be claimed from the User in compensation for any damage suffered by NotMe as a result of such breach(es).

11.2 Each User is free to terminate his/her registration by requesting the closure of his/her account at any time and without any charge by contacting [email protected] or via the “Account” or “Profile” tab of the Application.

11.3 Upon termination or suspension of his/her account, the User will no longer have a right to access his/her account and/or his/her content. NotMe may not be held responsible for deleting the data and/or the content relating to a terminated account.

11.4 All provisions regarding limitation of liability and/or warranty, and regarding applicable law, jurisdiction and/or arbitration shall survive any termination.

ARTICLE 12. MISCELLANEOUS PROVISIONS

12.1 NotMe may amend these Terms of Use at any time. The User shall be informed by any means of such changes prior to their entry into force. Changes to these Terms of Use shall be binding on the User upon their acceptance.

12.2 In the event that one or more provisions hereof are considered invalid or unenforceable by a competent court or by a law, these provisions shall be replaced by fair and equitable provisions, reflecting the agreement of the Parties and compliant with the applicable law, without the validity and enforceability of the other provisions hereof being affected.

12.3 The Terms of Use shall supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the Organization and/or the User and NotMe.

12.4 The Terms of Use shall be deemed to include all other notices, policies, disclaimers and other terms and conditions contained in the Application, including the applicable Privacy Policy.

However, these Terms of Use shall prevail over any contradictory document.

12.5 The User may not assign or transfer his/her rights and obligations under the Terms of Use without the prior written consent of NotMe. On the contrary, NotMe may assign its rights and obligations under the Terms of Use to a third party without any authorization from any User, US Customer, EU Customer or Organization.

12.6 The Terms of Use and the use of the Application, including the submission of content, do not and shall not be interpreted as creating any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship in any way and/or of any kind between the Parties.

Thus, the Parties shall remain independent contractors.

ARTICLE 13. JURISDICTION FOR US CUSTOMERS

13.1 US Customers are bound by an arbitration agreement and class action/private attorney general waiver as detailed in Annex 3.

13.2 In the event Article 13.1 is deemed invalid or inapplicable, US Customers irrevocably submit to the exclusive jurisdiction of the state and federal courts in the County of Los Angeles and the City of Los Angeles (California), and the related appellate courts, in any action or proceeding arising out of the applicable law and/or the Terms of Use and/or our Privacy Policy.

13.3 The provisions of Articles 13.1 and 13.2 are not binding for EU Customers.

EU Customers irrevocably submit to the exclusive jurisdiction of Tribunals within the area of competence of the Paris Court of Appeal, over any action or proceeding arising out of the applicable law and/or the Terms of Use and/or our Privacy Policy.

ARTICLE 14. GOVERNING LAW

14.1 The Terms of Use, and all matters relating to your access and or use of the Application, including all disputes between you and NotMe, shall be governed, interpreted and applied in accordance with:

  • For US Customers, the laws of the United States of America and the laws of the State of California;
  • For EU Customers, French law.

14.2 This provision shall apply without regard to any principles of conflicts of laws.

ARTICLE 15. CONTACT US

15.1 For any questions or information about the Application, the services provided by NotMe or the content available on the Application, you can leave a message to the following address: [email protected].

ANNEX 1: DIGITAL MILLENNIUM COPYRIGHT ACT

A.1. For US Customers, we inform you that our intellectual property and image rights policy is in compliance with the Digital Millennium Copyright Act (“DMCA”) to enable, at our sole discretion, the expeditious removal of allegedly infringing material.

A.2. If you have a good faith belief that your copyright is being infringed by any material on the Application, or material to which our Application links, please send a notice of claimed infringement, including the information listed below, to our Designated Copyright Agent at:

ADDRESS: NotMe Solutions Inc., 1415 N. Cahuenga Boulevard, Los Angeles, CA 90028

Telephone number: 747.999-6004

Email address: [email protected]

A.3. To be effective, the notice of claimed infringement must include the following required contents:

  • a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
  • identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (providing URLs in the body of an email is the best way to help us locate the content quickly);
  • information reasonably sufficient to permit us to contact the complaining party, such as the address, telephone, fax, and/or an email address at which the complaining party may be contacted;
  • a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
  • a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

A.4. Please note that information provided in this legal notice may be forwarded to the person who provided the allegedly infringing content.

ANNEX 2. SPECIFIC LIABILITY AND WARRANTY PROVISIONS FOR US CUSTOMERS

A.1. EXCEPT OTHERWISE STATED IN THE TERMS OF USE, UNDER NO CIRCUMSTANCES, INCLUDING ANY BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ARISING UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NotMe AND/OR ITS AFFILIATED PARTIES (THAT IS TO SAY ANY RELATED INDIVIDUALS, PARENTS, AFFILIATES AND SUBSIDIARIES, AND ANY OF THEIR TRUSTEES, MEMBERS, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS, CONSULTANTS, ATTORNEYS, AGENTS, SUPPLIERS, DISTRIBUTORS, LICENSEES OR LICENSORS) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARISE OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE APP (INCLUDING WITHOUT LIMITATION USE OF OR RELIANCE ON INFORMATION AVAILABLE ON OR IN THE APP OR OTHERWISE RELIED ON OR USED BY NotMe IN DELIVERING THE APP, AND/OR ANY INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NON DELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, AND/OR ANY OTHER FAILURE OF PERFORMANCE), OR FOR ANY CONTENT, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED OR ACCESSED THROUGH THE APP, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY AGREEING TO AND ACCEPTING THESE TERMS, YOU HEREBY IRREVOCABLY RELEASE NotMe AND ITS AFFILIATED PARTIES FROM LIABILITY OF ANY KIND, AND FOR ANY CONSEQUENCE(S) ARISING FROM THE USE OF THE APP. THIS INVOLVES ANY AND ALL LOSSES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF GOODWILL, INTERRUPTION, LOSS OF BUSINESS INFORMATION, DAMAGE TO REPUTATION, FEES, ACTUAL ATTORNEYS’ FEES AND COSTS, EXPENSES OR ANY DAMAGE, WHETHER DIRECT OR INDIRECT, WHETHER FINANCIAL OR NON- FINANCIAL.

A.2. IN ASSOCIATION WITH ANY CLAIM, OR ANY LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING RELATING TO OR ARISING UNDER OR OUT OF THESE TERMS, WHETHER THE CLAIM IS FOUNDED UPON CONTRACT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TORT, NEGLIGENCE OR OTHER GROUNDS. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING LIABILITY LIMITATIONS.

A.3. IN NO EVENT SHALL NotMe OR ITS AFFILIATED PARTIES BE LIABLE FOR ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY NotMe ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE APP (INCLUDING ANY USER GENERATED CONTENT). IN NO EVENT SHALL THE TOTAL LIABILITY OF NotMe AND ITS AFFILIATED PARTIES TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED, IN THE AGGREGATE, (i) THE AMOUNT, IF ANY, PAID BY YOU TO NotMe FOR YOUR USE OF THE APP OR FOR ANY OF YOUR ACTIVITIES IN CONNECTION WITH THE APP DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING YOUR CLAIM, OR (ii) THE SUM OF TWO HUNDRED AND FIFTY U.S. DOLLARS ($250.00 USD), WHICHEVER IS LESS.

A.4. TO THE EXTENT ALLOWED BY LAW, WE SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF THE FOLLOWING:

  • DELAYING, REJECTING, OR REMOVING ANY OR ALL CONTENT AT ANY TIME FOR ANY OR NO REASON WHATSOEVER WITH OR WITHOUT NOTICE TO YOU;
  • SHARING ANY REPORTS AND/OR UPDATES AND/OR RELATED DOCUMENTATION WITH ANY CURRENT OR FORMER EMPLOYEE OR EMPLOYER AND ANY THIRD PARTIES, SUCH AS LAW ENFORCEMENT, LAW FIRMS/LAWYERS OR MENTAL HEALTH PROFESSIONALS;
  • MODIFYING OR DISCONTINUING TEMPORARILY OR PERMANENTLY, THE APP (OR ANY PART THEREOF) WITH OR WITHOUT NOTICE TO YOU FOR ANY OR NO REASON WHATSOEVER;
  • IMMEDIATELY TERMINATING YOUR ACCESS TO THE APP FOR ANY OR NO REASON WHATSOEVER AND WITH OR WITHOUT NOTICE TO YOU;
  • THE ACCURACY, USEFULNESS, OR AVAILABILITY OF ANY INFORMATION POSTED TO OR THROUGH THE APP; AND/OR
  • ANY LOSS OR DAMAGE OF ANY SORT INCURRED BY YOU AS A RESULT OF INTERACTIONS YOU HAVE WITH THIRD PARTIES FOUND ON OR THROUGH THE APP.

A.5. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, STATUTORY, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFIT, LOSS OF GOODWILL, INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER FINANCIAL LOSS) IN ASSOCIATION WITH ANY CLAIM, OR ANY LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING RELATING TO OR ARISING UNDER OR OUT OF THESE TERMS, EVEN IF WE HAVE BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS FOUNDED UPON CONTRACT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TORT, NEGLIGENCE OR OTHER GROUNDS. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING LIABILITY LIMITATIONS.

A.6. SOME JURISDICTIONS MAY NOT PERMIT CERTAIN LIABILITY LIMITATIONS OR WAIVERS. IF ANY COURT DETERMINES THE LAW OF SUCH A JURISDICTION APPLIES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

A.7. NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, users of the App from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445- 1254 or (800) 952-5210.

B. Warranty

B.1. YOU USE THE APPLICATION AT YOUR SOLE/OWN RISK. THE APPLICATION, INCLUDING ALL CONTENT, SOFTWARE, WEBSITE, APPLICATION, FUNCTIONS AND MATERIALS, IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES WITH RESPECT TO ANY UPTIME OR UNINTERRUPTED ACCESS, THE AVAILABILITY, ACCURACY OR USEFULNESS OF ANY CONTENT, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FEATURES, QUALITY, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. WE DO NOT WARRANT THE APP AND/OR ANY SERVICES AND/OR CONTENT WILL BE TIMELY, SECURE, UNINTERRUPTED, OR OPERATED FREE OF DELAYS IN TRANSMISSION, FAILURE IN PERFORMANCE, COMPUTER VIRUSES, INACCURACIES, ERRORS OR DEFECTS. WE ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE, FOR ANY DAMAGES TO OR VIRUS(ES) OR OTHER MALWARE THAT MAY INFECT YOUR COMPUTER EQUIPMENT, TABLET, CELLULAR/MOBILE PHONE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, BROWSING, OR USE OF THE APP. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING SUFFICIENT SAFEGUARD PROCEDURES AND VIRUS AND MALWARE CHECKS (INCLUDING ANTI-VIRUS, REGULAR SYSTEM UPGRADES AND OTHER SECURITY CHECKS AND MEASURES) TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY AND SECURITY OF DATA INPUT AND OUTPUT. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

B.2. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.

B.3. The information provided by the Application is not intended to replace the information presented in the physical world. In the event that information in the physical world differs from the Application, you must not rely on the Application. Moreover, NotMe does not warrant the Application will operate in an uninterrupted or error-free manner, or that it is safe, secured from unauthorized access to NotMe’ computers, immune from damages, and free of malfunctions, bugs or failures (including, but not limited to, hardware or software failures).

C. Released Parties

C.1. To the fullest extent permitted by law, you release us, our affiliated parties and our related individuals, affiliates and subsidiaries, and any of their trustees, members, directors, officers, shareholders, employees, representatives, subcontractors, consultants, attorneys, agents, suppliers, distributors, licensees and/or licensors from any and all responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the following: (i) disputes between Users, including those between you and other Users; (ii) third party platforms and services, including content found on such platforms and in such services; (iii) disputes concerning any use of or action taken using your account by you or any third party; (iv) claims relating to unauthorized access to any data communications or content stored under or relating to your account, including unauthorized use or alteration of such communications or your content; (v) the sharing of any report and/or update(s) (including all related information and documentation) with your current or former employee or employer (as applicable) or related third parties, such as law enforcement or mental health professionals.

C.2. If you have a dispute with your current or former employee or employer or Organization (as applicable), one or more Users of the Application, with any party who provides third party services on or through the Application, with any individual or entity who provides a website, application or other service linked to the Application or from third-party content which is posted in or on the Application, you release us and our affiliated parties from all claims, demands, and damages (e.g., direct, incidental, indirect, punitive, statutory, exemplary, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you have a dispute with your current or former employee or any third party in any way pertaining to our Application, services and/or content, you release NotMe and our affiliated parties from any and all claims, demands, and damages (e.g., direct, incidental, indirect, punitive, statutory, exemplary, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. You also waive California Civil Code § 1542 which states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

C.3. You also waive any and all benefits and rights that would otherwise accrue to you by reason of the provisions of any federal, national, state or local statute or principle of common law of any state in the United States, or any political entity or nation, provincial or local law or regulation that may govern this release, which statute, regulation, law or principle provides in substance something similar to California Civil Code § 1542. You agree not to file any action or lawsuit inconsistent with the foregoing release.

D. Indemnity

D.1. Users agree to defend, indemnify and hold harmless us, our affiliated parties and our employees, contractors, agents, professional advisers, members, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to actual attorney’s fees and costs) arising from: (i) your use of and access to the Application, including any data or content transmitted, submitted, viewed, or received by you; (ii) your violation of any provision of these Terms of Use and/or our Privacy Policy, including your breach of any of the representations and/or warranties contained in these Terms of Use; (iii) your violation of any third party rights, including any rights of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your content or any that is submitted via any User’s account; and/or (vi) any other party’s access and use of the Application and any of the Application’s services and/or content with your unique Username, password or other appropriate security code.

D.2. You hereby agree that we shall have the sole right and obligation to control the legal defense against any such claims, demands, or litigation, including the right to select counsel of our choice and to compromise or settle any such claims, demands, or litigation.

E. Disclaimers/No Warranties

E.1. We administer, control and operate the Application from our offices in the County of Los Angeles and in the City of Los Angeles, USA. The Application is accessible world-wide. However, some of its features or functions may not be available or appropriate for use outside of the United States and/or may not be available to all persons or in all geographic locations. We make no representation that the Application or our content and/or services are appropriate or authorized for use in all countries, states, provinces, counties, localities or any other jurisdictions. Your access and use of the Application may not be legal in your jurisdiction. If you choose to access, browse or use the Application, you do so on your own initiative and at your own risk, and you are responsible for compliance with all applicable laws if, and to the full extent that, such laws and restrictions are applicable. We reserve the right to limit, in our sole discretion, the provision of any feature or function of the Application to any person and/or geographic area. Any offer for any feature or function made on the Application is void where prohibited.

E.2. NotMe and its Affiliates are not providing legal services and are not licensed to provide legal services although if your employer does not subscribe to our services, we may share information about any report you file with us with lawyers or law firms to assist with addressing the issues you have raised. Rather, our Application is intended to facilitate the ability of employees (current or former) and individuals to file a report with their employer or any Organizations, and for you as the employer or Organization to better address, manage and deal with workplace misconduct or any type of misconduct, if any, and provide updates through our services, and for no other purpose. The Application provides information of a general nature only. You are responsible for determining whether it applies to your specific situation. We specifically disclaim any liability concerning any action that any individual may take based on any information or guidance provided in the Application.

E.3. AS A USER, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE APPLICATION IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ALL USE OF THE APPLICATION.

F. Third-Party Websites/Applications

F.1. The Application contains links to websites and/or applications of third parties whose involvement is an integral part of our providing our services (“Platforms”). If you use these links, you will leave our Application. These third parties and their platforms are not under our control. We do not examine or evaluate these platforms and we are not responsible for their content or operation. By providing links to these platforms, we do not approve, warrant, endorse, or otherwise make any representation about them or their owners or operators, and do not assume any related responsibility or liability. You should exercise your own judgment in evaluating and using these platforms. When you link to these platforms, you become subject to their terms and conditions of use and privacy policies and should review them carefully before entering any such platforms. We do not endorse these platforms and our Terms of Use and Privacy Policy do not apply to them.

F.2. We do not warrant that a third party cannot decrypt your information should a third party come into possession of or have access to the device(s) you use to access our services. We recommend that Users implement all the security features on each of their devices, including any password or locking functions, to protect those device(s) and the confidentiality of your information. To the extent that you connect to our services by way of third-party wireless networks, We cannot guarantee that those communications will not be intercepted by others. You agree that we will not be liable for any damages for any loss or disclosure of personal information or other damages occurring in communication over networks and/or platforms outside our control. From time to time, we may issue updates to our services. Depending on the update, you may not be able to use our services until you have downloaded the latest updates and accepted any new Terms of Use.

F.3. We reserve the right, at our sole discretion, to terminate, suspend, cancel or alter access to third-party platforms at any time. You expressly release us from any and all liability arising from your use of any third-party platforms and their services or contents. Your dealings with providers found on those third-party platforms, including payment for or delivery of goods and/or services, and any other terms, including, but not limited to warranties, are solely between you and those providers. You specifically agree that we are not responsible for any loss or damage of any sort resulting or arising from your dealings with those third-party platforms and/or their providers.

G. Statute of Limitations

G.1. Whether you are an individual or an employer or Organization, you and we agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to our Application, or our Content and/or Services, Terms of Use and/or Privacy Policy must be filed within one (1) year after such claim or cause of action arose or be forever barred.

ANNEX 3. ARBITRATION AGREEMENT AND CLASS ACTION/PRIVATE ATTORNEY GENERAL WAIVER FOR US CUSTOMERS

A. Agreement to Arbitration; Class Waiver:

You and we agree any dispute, claim or controversy arising out of or relating in any way to our Application, services and/or any content, including, but not limited to, the Application, our content, our products, our services and User interfaces, our Privacy Policy and/or our privacy practices generally, as well as, these Terms of Use, and this Arbitration Agreement, shall be determined by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts.

YOU AGREE THAT, BY AGREEING TO THESE TERMS, THE U.S. FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT, AND THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION.

This arbitration provision shall survive termination of these Terms of Use as provided in Article 11.4.

  • Pre-Filing Mediation. In the event of a dispute, prior to initiating arbitration, the party asserting the claim must first send to the other, by certified mail or overnight courier, a written Notice of Claim (“Notice”). If you are the claimant, the Notice to us must be addressed to: Compliance Officer, NotMe, 1415 N. Cahuenga Boulevard, Los Angeles, CA 90028 or by emailing [email protected]. If we are the claimant, the Notice must be sent to the last known address we have on file for you in your Account. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. Following receipt of the Notice, each party agrees to negotiate with the other in good faith about the claim. If the claim is not resolved to the satisfaction of the claimant within sixty (60) days after Notice is provided, the claimant may pursue the claim in arbitration or file a claim in small claims court, if the claim is eligible for small claims disposition.

Additional Arbitration Provisions:

  • Settlement Offers: During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator.
  • Initiating A Claim: The form required to initiate an arbitration can be printed or downloaded from www.adr.org. Alternatively, you may contact the arbitration administrator by calling 1-800-778-7879 or writing to the American Arbitration Association, 725 S. Figueroa St., Suite 400, Los Angeles, CA 90017.
  • Fees for Initiating Arbitration: Whether the fees incurred by the party filing for arbitration are to be reimbursed, divided between the parties or otherwise allotted shall be decided by the arbitrator/arbitration panel as part of the proceedings.
  • Applicable Rules; Administrator: The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (or any successor rules or protocols enacted by AAA) (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the American Arbitration Association, 725 S. Figueroa St., Suite 400, Los Angeles, CA 90017. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement.
  • Location of Hearing: Unless you and we agree otherwise, any arbitration hearings will take place in Los Angeles, California in accordance with the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based.
  • Class Action / Private Attorney General Waiver: YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate the claims of more than one party and may not otherwise preside over any form of a class, representative or private attorney general proceeding. If this specific provision is found to be unenforceable as applied to any claim asserted by you, then the entirety of the arbitration provision set forth in this Section CC shall be null and void.
  • Injunctive Relief Limitation: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party’s individual claim.

B. Opt-Out Provision:

You may elect to opt out (exclude yourself) from the final, binding arbitration procedure, the class action waiver and/or the private attorney general waiver specified in these Terms by doing the following. Within 15 days of your first accessing the Application, you must send a letter to us at: Account Manager, NotMe, 1415 N. Cahuenga Boulevard, Los Angeles, CA 90028 that specifies (1) your name, (2) your IP address(es), (3) your mailing address, and (4) your request to be excluded from the final, binding arbitration procedure and class action/private attorney general waiver specified in these Terms of Use. All other Terms shall continue to apply to you and your Account, including the requirement to participate in pre-dispute mediation. You are not required to send the letter by certified mail, return receipt requested or overnight courier, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove the request was postmarked within the applicable 15-day deadline.

C. Arbitration Clauses Invalid/Inapplicable:

If any court of competent jurisdiction finds the binding arbitration and/or class action/private attorney general waiver provisions in these Terms of Use to be invalid or applicable, you agree to the exclusive jurisdiction of the federal and state courts located in the County of Los Angeles, City of Los Angeles, California, and the related appellate courts, in any related action or proceeding. Further, you irrevocably submit to the venue in the state and federal courts in the County of Los Angeles, City of Los Angeles, California, and the related appellate courts, in any related action or proceeding and agree you shall not raise any claims as to the County of Los Angeles, City of Los Angeles, California being an inconvenient forum. You also agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable claim or action.

Request a Demo

Request a Demo